Mobile Phone Offences Whilst Driving

Section 41D of the Road Traffic Act 1988 makes it an offence to use a mobile telephone or other similar devices in a handheld capacity whilst driving. The law was introduced during the early generation of such devices and arguably has barely kept up with the advancement of the technology.

Historically the offence was non-endorsable and on conviction only resulted in a fine being imposed. However, the offence is now deemed much more serious due to the risk that being distracted by a device poses and the offence now carries an endorsement of 6 penalty points on their licence if convicted.

The police may of issue a fixed penalty comprising of 6 penalty points and a fine but if an allegation is referred to court then the magistrates would also have the discretion also consider imposing a disqualification if they felt that the penalty points were not a sufficient punishment.

There are other offences relating to mobile phones and driving and someone found to be simply holding a device could be charged with “driving whilst not in proper control” or if someone is distracted by a mobile phone even whilst using a hand free kit could be charged with “driving without due care and attention”

The terms “use” and “driving” have been debated at length in case law and as with all cases, the individual facts of the matter are fundamentally important as to whether an allegation can be successfully defended or not. As such professional advice is fundamentally important at a very early stage in proceedings so that the relevant elements of the offence can be considered including whether phone records will need to be accessed.

As well as contesting the allegation there may be ways to avoid the relatively high number of penalty points attached to the allegation through negotiations regarding the charge, arguing special reasons or even securing a discretionary driving ban.

In order to ensure that the best possible result is obtained in such a case, a driver should contact a specialist road traffic solicitor as soon as they have been accused of using a mobile phone whilst driving.